Fight as ICANN “backtracks” on piracy policing

ICANN has clarified that it will not terminate new gTLD registries that have piracy web sites in their zones, potentially inflaming an ongoing fight between domain companies and intellectual property interests.
This week’s ICANN 56 policy meeting in Helsinki saw registries and the Intellectual Property Constituency clash over whether an ICANN rule means that registries breach their contract if they don’t suspend piracy domains.
Both sides have different interpretation of the rule, found in the so-called “Public Interest Commitments” or PICs that can be found in Specification 11 of every new gTLD Registry Agreement.
But ICANN chair Steve Crocker, in a letter to the IPC last night, seemed to side strongly with the registries’ interpretation.
Spec 11 states, among other things, that:

Registry Operator will include a provision in its Registry-Registrar Agreement that requires Registrars to include in their Registration Agreements a provision prohibiting Registered Name Holders from distributing malware, abusively operating botnets, phishing, piracy, trademark or copyright infringement, fraudulent or deceptive practices, counterfeiting or otherwise engaging in activity contrary to applicable law, and providing (consistent with applicable law and any related procedures) consequences for such activities including suspension of the domain name.

A literal reading of this, and the reading favored by registries, is that all registries have to do to be in compliance is to include the piracy prohibitions in their Registry-Registrar Agreement, essentially passing off responsibility for piracy to registrars (which in turn pass of responsibility to registrants).
Registries believe that the phrase “consistent with applicable law and related procedures” means they only have to suspend a domain name when they receive a court order.
Members of the IPC, on the other hand, say this reading is ridiculous.
“We don’t know what this clause means,” Marc Trachtenberg of the IPC said during a session in Helsinki on Tuesday. “It’s got to mean something. It can’t just mean you have to put a provision into a contract, that’s pointless.”
“To put a provision into a contract that you’re not going to enforce, has no meaning,” he added. “And to have a clause that a registry operator or registrar has to comply with a court order, that’s meaningless also. Clearly a registry operator has to comply with a court order.”
Some IPC members think ICANN has “backtracked” by introducing the PICs concept then failing to enforce it.
IPC members in general believe that registries are supposed to not only require their registrars to ban piracy sites, but also to suspend piracy domains when they’re told about them.
Registries including Donuts have started doing this recently on a voluntary basis with partners such as the Motion Picture Association of America, but believe that ICANN should not be in the business of content policing.
“[Spec 11] doesn’t say what some members of the IPC think it says,” Donuts VP Jon Nevett said during the Helsinki session. “To say we’re in blatant violation of that PIC and that ICANN is not enforcing that PIC is problematic.”
The fight kicked off face-to-face in Helsinki, but it has been happening behind the scenes for several months.
The IPC got mad back in February when Crocker, responding to Governmental Advisory Committee concerns about intellectual property abuse, said the issue “appears to be outside of our mandate” (pdf).
That’s a reference to ICANN’s strengthening resolve that it is not and should not be the internet’s “content police”.
In April (pdf) and June (pdf) letters, IPC president Greg Shatan and the Coalition for Online Accountability’s Steve Metalitz called on Crocker to clarify this statement.
Last night, he did, and the clarification is unlikely to make the IPC happy.
Crocker wrote (pdf):

ICANN will bring enforcement actions against Registries that fail to include the required prohibitions and reservations in its end-user agreements and against Registrars that fail to main the required abuse point of contact…
This does not mean, however, that ICANN is required or qualified to make factual and legal determinations as to whether a Registered Name Holder or website operator is violating applicable laws and governmental regulations, and to assess what would constitute an appropriate remedy in any particular situation.

This seems pretty clear — new gTLD registries are not going to be held accountable for domains used for content piracy.
The debate may not be over however.
During Helsinki there was a smaller, semi-private (recorded but not webcast live) meeting of the some registries, IPC and GAC members, hosted by ICANN board member Bruce Tonkin, which evidently concluded that more discussion is needed to reach a common understanding of just what the hell these PICs mean.

Brexit probably no big deal for UK domain owners

The UK may have suffered the most serious self-inflicted wound since the deep-fried Mars bar when it voted to leave the European Union last week, but it seems unlikely to have a huge effect on domain name registrants.
Most EU ccTLD registries do not require registrants to be based in the EU, and those that do have shown themselves flexible.
I surveyed the web sites of all 29 EU ccTLD registries, scouring FAQs and policy documents, to see if leaving the EU would cause conflicts for UK registrants.
All but one of these sites have comprehensive English versions available, which made the process very simple indeed.
It turns out the majority of the EU’s member states either have no geographic restrictions whatsoever or restrict registrations to only people and companies within their own nations.
I found five — six if you count .eu itself — that have policies that refer directly to a European Union presence in their rules and regulations.

• .fr (France) is restricted to residents of the EU and Iceland, Liechtenstein, Norway and Switzerland.
• .it (Italy) allows registrations from anyone in the European Economic Area, the Vatican, San Marino or Switzerland.
• .nl (Netherlands) allows regs from anywhere, but registry manager SIDN says may attach “additional conditions to legal and/or natural persons based outside the European Union”.
• .hu (Hungary) requires EU residency for individuals and companies wishing to register directly at the second level. There are no such restrictions at the third level.
• .bg (Bulgaria) requires a local Bulgarian presence for non-EU registrants.
• .eu (European Union) requires presence in the European Union, Norway, Iceland or Liechtenstein.

As you can see, even those with EU presence requirements are pretty flexible when it comes to bolting on additional eligible countries.
So-called Brexit — British exit from the EU — is unlikely to happen for two years or more, if it happens at all.
The thinking right now is that if/when the UK does finally formally leave it is likely to either become a member of the European Economic Area or have otherwise have negotiated a relationship with the EU not unlike Norway’s.
This would presumably make it fairly easy for ccTLD registries to plug the UK into their existing policies.
Any registry with a substantial number of existing UK registrants would of course have financial exposure to a Brexit, a likely incentive to modify their rules accordingly.
So for regular domain owners, Brexit is probably no big deal.
Whether the move would an impact on trademark holders or registrars are rather more complex matters that I have not looked at yet.

ICANN Ombudsman let go as role comes up for review

ICANN’s Ombudsman, Chris LaHatte, has been told his services are no longer needed.
His current contract expires July 27, but he’s been informed that it will not be renewed.
No reason has been given for the move.
Herb Waye, who took the role on an interim basis in 2011 after the departure of former Ombusdman Frank Fowlie, will step in again while ICANN looks for a permanent replacement.
LaHatte will continue on as an adviser during the transition.
The decision to replace LaHatte comes as the ICANN community begins on so-called Work Stream 2 of the IANA transition process, which includes a review of the role of the Ombudsman in ICANN’s power structure.
The Ombudsman’s job is currently to adjudicate on matters of fairness in ICANN’s activities.
He or she reports to the board and any advice given is non-binding.

Judge throws out DotConnectAfrica’s case against ZACR

South African registry ZACR did not engage in a fraudulent conspiracy with ICANN to get its .africa gTLD application approved, a court ruled yesterday.
The California judge in the case of DotConnectAfrica vs ICANN and ZACR threw out all of DCA’s claims against ZACR, approving ZACR’s motion to dismiss.
The judge said DCA had failed to make claims for fraud, contract intereference and unfair competition.
He also threw out DCA’s demand for ZACR’s .africa Registry Agreement to be scrapped.
The case is not over, however.
DCA’s claims against ICANN still stand and ICANN, perhaps regrettably, withdrew its own motion to dismiss the case weeks ago. The case still looks like heading to trial.
DCA reckons ICANN, ZACR, independent evaluator InterConnect Communications, and the Governmental Advisory Committee improperly ganged up on it, in breach of its new gTLD application contract.
The judge has already ruled that the litigation waiver DCA signed when it applied for .dotafrica .africa may be unenforceable.
He also based a decision to give DCA’s claims the benefit of the doubt on a huge misunderstanding of the facts, which he has yet to address publicly.
You can read the judge’s latest order here (pdf).
Under an injunction DCA won, .africa cannot be delegated until the case is resolved.

NTIA gives nod to IANA transition

The US National Telecommunications and Information Administration has formally thrown its weight behind the community-led proposal that would remove the US government, itself in effect, from DNS root oversight.
Assistant secretary Larry Strickling held a press conference this afternoon to confirm the hardly surprising development, but dodged questions about a Republican move to scupper the plan in Congress.
The IANA transition plan, which was developed by the ICANN community over about two years, meets all the criteria NTIA had set out in its surprise 2014 announcement, Strickling confirmed.
Namely, NTIA said in a press release that the the plan would:

• Support and enhance the multistakeholder model;
• Maintain the security, stability, and resiliency of the Internet DNS;
• Meet the needs and expectations of the global customers and partners of the IANA services; and
• Maintain the openness of the Internet.

Probably more importantly, NTIA agrees with everyone else that the plan does not replace NTIA’s role with more government meddling.
US Sen. Ted Cruz and Rep. Sean Duffy see things differently. They yesterday introduced the Protecting Internet Freedom Act, which would stop the transition going ahead.
Strickling said that NTIA has been talking to Congress members about the transition, but declined to “speculate” about the new bill’s likelihood of success.
“We’ve been up on the Hill doing briefings and will continue to do so with any member that wants to talk to us,” he said.
Currently, NTIA is forbidden by law from spending any money on the transition, but that prohibition expires (unless it is renewed) at the end of the current federal budget cycle.
The plan is to carry out the transition after that, Strickling said.
The current IANA contract expires September 30. It may be extended, depending on how quickly ICANN and Verisign proceed on their implementation tasks.

Cruz-Duffy bill would put brakes on IANA transition

America’s continuing unique oversight role in the DNS root management system, fuck yeah!
That’s basically the takeaway from a new bit of proposed US legislation, put forward by Sen. Ted Cruz and Rep. Sean Duffy in both houses of Congress yesterday.
The two Republican Congressmen have proposed the inappropriately named Protecting Internet Freedom Act, which is specifically designed to scupper the IANA transition at the eleventh hour.
PIFA would prevent the National Telecommunications and Information Administration from backing away from its role in the DNS root management triumvirate.
It’s supported, ironically, by a bunch of small-government right-wing think tanks and lobby groups.
If the bill is enacted, NTIA would need a further act of Congress in order to cancel or allow to expire its current IANA functions contract with ICANN
The bill (pdf) reads:

The Assistant Secretary of Commerce for Communications and Information may not allow the responsibility of the National Telecommunications and Information Administration with respect to the Internet domain name system functions, including responsibility with respect to the authoritative root zone file and the performance of the Internet Assigned Numbers Authority functions, to terminate, lapse, expire, be cancelled, or otherwise cease to be in effect unless a Federal statute enacted after the date of enactment of this Act expressly grants the Assistant Secretary such authority.

The bill also seeks to ensure that the US government has “sole ownership” of the .gov and .mil TLDs “in perpetuity”.
These ownership rights are not and have never been in question; the inclusion of this language in the bill looks like a cheap attempt to stir up Congresspeople’s basest jingoistic tendencies.
A Cruz press release said the IANA transition “will allow over 160 foreign governments to have increased influence over the management and operation of the Internet.”
Duffy added:

President Obama wants to hand over the keys to the Internet to countries like China and Russia. This is reckless and absurd. The governments of these countries do not value free speech. In fact, they censor the Internet and routinely repress and punish political dissidents. They cannot be trusted with something as fundamental to free speech as a free and open Internet.

It’s unfiltered scaremongering.
No country — not China, Russia, the US nor any other government — gets increased powers under the IANA transition proposal, which was painstakingly crafted by, and is now supported by, pretty much all community stakeholders over two years.
In fact, governmental power is significantly curtailed under the proposal.
Post-transition, the Governmental Advisory Committee’s current voting practice, which essentially requires unanimity, would be enshrined in ICANN’s bylaws.
If the GAC came to ICANN with advice that did not have consensus — that is, some governments formally objected to it — ICANN would be able to reject it much more easily than it can today.
The one area where the GAC does get a new role is in the so-called “Empowered Community”, a new concept that will enter the ICANN bylaws post-transition.
The Empowered Community would be a non-profit legal entity formed by the ICANN community in the exceptional event that the ICANN board goes rogue and starts doing really egregious stuff that nobody wants — for example, introducing Draconian policy regulating freedom of speech.
The EC would have the power to kick out the ICANN board members of its choice, reject the ICANN budget, throw out proposed bylaws amendments and so on. As far as ICANN is concerned, the EC would be God.
Its members, or “Decisional Participants” would be the GNSO, the ccNSO, the ALAC, the ASO and the GAC.
The fact that the GAC has a seat at the EC table is the straw that Cruz, Duffy and co grasp at when they talk about governments getting increased power in a post-transition ICANN.
But the GAC’s voice is equal to those of the other four participants, and the GAC is not allowed a vote on matters stemming from ICANN’s implementation of consensus GAC advice.
In other words, the only way Cruz’s boogeymen governments would ever get to push through a censorship policy would be if that policy was also supported by all the other governments or by the majority of the diverse, multi-stakeholder ICANN community.
The arguments of Cruz and Duffy are red herrings, in other words.
Not only that, but the US record on attempted censorship of the DNS root is hardly exemplary.
While it’s generally been quietly hands-off for the majority of the time ICANN has had its hand on the rudder, there was a notable exception.
The Bush-era NTIA, following a letter-writing campaign by the religious right — Bible-thumping Cruz’s base — exerted pressure on ICANN to reject the proposed porn-only .xxx gTLD.
So who’s the real threat here, Red China or Ted Cruz, the man who tried to ban the sale of dildos in Texas?
The Protecting Internet Freedom Act is obviously still just a bill, but Republicans still control both houses of Congress so it’s not impossible that the tens of thousands of hours the ICANN community has put into the IANA transition could be sacrificed on the altar of embarrassing the President, who is probably Kenyan anyway.

ICANN to publish board meeting transcripts

In a surprising move towards further transparency, the ICANN board of directors has decided to start publishing transcripts and possibly recordings of its meetings.
It passed a resolution during a meeting in Amsterdam this week stating:

the Board directs the President and CEO, or his designee(s), to work with the Board to develop a proposed plan for the publication of transcripts and/or recordings of Board deliberative sessions, with such plan to include an assessment of possible resources costs and fiscal impact, and draft processes to: (i) ensure the accuracy of the transcript; and (ii) for redaction of portions of the transcript that should be maintained as confidential or privileged.

Transcription services can be picked up dirt cheap, so I can’t see money getting in the way of this proposal becoming a reality.
A question mark of course hangs over the “confidential or privileged” carve-out, of course. ICANN is sometimes over-generous with what it considers redactable material.
Still, it’s great news for the ICANN community, which has been calling for greater board transparency for years.
When I started covering ICANN back in 1999, board sessions at the then four-times-a-year public meetings were conducted in the open; all the thinking was done aloud.
At some point in the early 2000s that stopped, however, and the board’s public sessions became a case of rubber-stamping resolutions that had already been debated behind closed doors.
Minutes, staff-prepared briefing materials and broad-stroke narrative reports have been published, but they give limited insight into the depth of the discussions.
Chair Steve Crocker has even stated in recent years that its goal was to make these public sessions “as boring as possible”.
That’s obviously no good for those of us who’d like to know how top-level decisions at ICANN actually get made.
The plan is for new CEO Goran Marby, who starts on Monday, to come up with a proposal before the Helsinki meeting next month, with a view to start publishing transcripts not long thereafter

ICANN diverts from Puerto Rico to India to avoid Zika

ICANN has confirmed that its 57th public meeting will not be held, as originally planned, in Puerto Rico.
Instead, it is asking community members to instead head to Hyderabad, India, this November.
Those Las Vegas rumors turned out not to be true. However, on the up-side, those Las Vegas rumors turned out not to be true!
The decision was to relocate made to the a “state of emergency” being declared in Puerto Rico due to the Zika virus.
Zika is spread by mosquitoes and male sexual partners and can cause devastating birth defects in kids.
Latest figures from the US Center for Disease Control put infections in US territories at 701, three of whom were travelers.
ICANN said in a blog post this evening:

This decision was based on available research and information and the fact that Puerto Rico has declared a state of emergency due to the ongoing Zika virus outbreak. We believe that the Zika virus poses a significant enough threat that we need to postpone going to Puerto Rico for the health and safety of our community and our ICANN team, just as we had to postpone ICANN52 and relocate from Marrakech to Singapore due to the Ebola virus outbreak in 2014.

It’s the second of this year’s meetings to be relocated due to Zika. June’s Panama meeting has been moved to Helsinki.
ICANN said that the new venue for ICANN 57, which takes place from November 3 to 9 this year, is the Hyderabad International Convention Centre.
It’s said that ICANN will take a seven-figure hit to its bank balance in order to cancel the PR meeting.

ICANN pimps new sexual harassment rules

ICANN has proposed new anti-harassment guidelines for its community that would ban “unwelcome hostile or intimidating behavior”.
It wants your comments on the changes to its longstanding “Expected Standards of Behavior” document, which applies to both its in-person meetings and online discussions and mailing lists.
The proposed addition to the document reads like this:

Respect all members of the ICANN community equally and behave according to professional standards and demonstrate appropriate behavior. ICANN strives to create and maintain an environment in which people of many different backgrounds and cultures are treated with dignity, decency, and respect. Specifically, participants in the ICANN process must not engage in any type of harassment. Generally, harassment is considered unwelcome hostile or intimidating behavior — in particular, speech or behavior that is sexually aggressive or intimidates based on attributes such as race, gender, ethnicity, religion, age, color, national origin, ancestry, disability or medical condition, sexual orientation, or gender identity.

The definition of harassment has been borrowed almost directly from the Internet Engineering Task Force’s policy on harassment, which was signed off in 2013.
ICANN has added the words “ethnicity” and “medical condition” to the IETF’s list of protected characteristics, but has not included the IETF’s list of examples:

the use of offensive language or sexual imagery in public presentations and displays, degrading verbal comments, deliberate intimidation, stalking, harassing photography or recording, inappropriate physical contact, and unwelcome sexual attention.

The changes were prompted by a recent allegation of sexual harassment at an ICANN meeting which divided the community on whether the alleged incident amounted to sexual harassment or not.
ICANN’s Ombudsman, Chris LaHatte, concluded that whatever took place “cannot be considered serious”, but he did not make a formal finding.
LaHatte has already endorsed the proposed change to the expected standards document.
It does not seem unreasonable to me, at first glance, either.
What do you think? ICANN has opened a public comment period that closes June 25, to find out.

With Zika fears, is ICANN dissing Latin America?

Internet organizations in Latin America are pissed off with ICANN for cancelling its Panama public meeting and potentially cancelling its Puerto Rico meeting.
They said that the cancellations will have “a direct negative impact on the participation of our communities in the region, since they view these meetings as favorable opportunities to get together for the development of their respective work agendas, leveraging geographic and cultural proximity.”
“This has a direct effect on the development of the Internet in our regions,” they added.
The comments came in a May 5 letter (pdf) from the Latin America and Caribbean Internet Addresses Registry (LACNIC) the Latin America and Caribbean TLD Association (LACTLD) and the Latin America and Caribbean Association of Internet Exchange Points (LAC-IX).
Together, they represent IP addressing, ccTLDs and internet exchanges in the region.
ICANN recently switched its ICANN 56 venue from Panama to Finland due to the Zika virus outbreak in the region.
It is also expected to relocate ICANN 57 from Puerto Rico to Las Vegas, for the same reason, though no decision has yet been made.
The letter claims that the LAC region is being under-served in terms of ICANN meeting time.
While ICANN’s goal is to rotate its meetings through its five regions, the letter says that the LAC region only gets one out of six meetings.
But is the region getting fewer meetings than elsewhere? I don’t think the numbers support that assertion.
This is how all the meetings to date break down by ICANN region.
[table id=40 /]
It’s clear that LAC isn’t getting singled out in particular for a dissing, no more than Africa or North America.
In fact, LAC may be doing better than North America, due to the weird way ICANN assigns countries to regions.
The Caribbean island of Puerto Rico (where ICANN met in 2007) counts as North America as far as ICANN is concerned, due to its status as a US territory.
ICANN counts Mexico (where it met in 2009), which is geographically North American, as a LAC nation for some reason.
But the three organizations signing this letter all count both Mexico and Puerto Rico as LAC nations. By that definition, they’ve had 11 meetings to North America’s nine, placing LAC in the middle of the table with exactly one out of every five meetings taking place there.
ICANN chair Steve Crocker did not dissect the numbers in his reply (pdf) yesterday, instead focusing on sympathizing with the LAC groups’ concerns and pointing out that finding suitable locations for ICANN meetings is extremely tricky.
“On rare occasions, due to events outside ICANN’s control, we face challenges sufficiently severe that we feel we cannot proceed with meetings in the venue we have planned,” Crocker wrote.
He continued: “[I]t is our understanding that the Zika virus poses a serious threat to human health. We have consulted extensively on risks and considered whether under the circumstances we can hold an efficient and safe meeting. In this instance we have decided this is a serious risk and decided to go to an alternate venue for the safety of our community.”